Metz v. McAvoy Brewing Co. , 1901 Ill. App. LEXIS 307 ( 1901 )

Mr. Presiding Justice Windes

delivered the opinion of the court.

The first question presented is as to whether, upon the facts found by the decree and upon the allegations of the bill and cross-bill, chancery has jurisdiction. Appellant’s counsel argue the case in this regard upon the basis of the facts stated in the bill and found by the master as being true. The bill alleges that the complainant recovered its judgment against Lorenz Metz “ under the name of Lorenz Meetz,” and that the note on which the judgment was rendered might be read Metz or Meetz. The decree finds that the record of said judgment shows the judgment against 61 Lorenz Meetz,” and that the misspelling of the word “ Metz ” was by reason of a clerical error which appeared upon the narr. and cognovit upon which the judgment was entered. There is no question made but that Lorenz Metz is the same person who is called Lorenz Meetz. The bill alleges and the decree finds that he was the owner of the real estate in question at the time the judgment was rendered. By virtue of the statute the judgment as soon as entered became a lien upon the real estate. The decree so finds, and the case of the brewing company, as well as that of Newberry on his cross-bill, proceeds upon the theory that the judgment, from its rendition, was a lien upon the real estate. That being so, there was nothing to prevent the brewing company from proceeding under an execution to sell the property without a resort' to equity. The fact that the real estate was conveyed by Metz to Eayner, by the latter to appellant and by her to appellee Newberry, could make no difference with the brewing company’s right to proceed by execution against the real estate to enforce its lien. Davenport v. Karnes, 70 Ill. 465-70; Walters v. Defenbaugh, 90 Ill. 241; Davidson v. Burke, 143 Ill. 139.

Moreover the names Metz and Meetz are so near alike in spelling and pronunciation that under the authorities in this State as well as elsewhere, they are idem sonans. They are German names and in pronunciation are very similar in sound, the letter “ e ” in Metz having very much the same sound as the letter “ a ” in such English words as “ pate,” “ rate ” or “ fate.” The sound of the letter “ e ” in Meetz, being doubled, is merely prolonged. That the two words are idem sonans is not controverted by appellees.

In Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148, it was held that Mitchell Allen was idem sonans with Michael Allaine, and Otaine Allaine with Antoine Allaine. In McDonald v. People, 47 Ill. 533, McDonnell was held idem sonans with McDonald. In Gahan v. People, 58 Ill. 160, the defendant was indicted for an assault upon the person of Mary Danner, though her real name was Mary Dannaher, but a conviction was sustained, the court holding'that the names were substantially idem sonans. See also Myer v. Fegaly, 39 Pa. St. 429, and 16th Am. & Eng. Ency. of Law, 122, ánd cases there cited.

The rule in this regard is thus stated in the Encyclopaedia of Law, supra, viz:

“ Absolute accuracy in spelling names is not required in legal documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name, as thus given, is a sufficient designation of the individual referred to, and no advantage can be taken of the clerical error.”

For this reason it would seem, that the brewing company had a perfect right to enforce its judgment as against the property of Lorenz Metz, notwithstanding the record of the judgment showed his name spelled Meetz.

If, however, there were any doubt because of the different spelling of the name, it was clearly within the power of the Circuit Court to have corrected the clerical error upon notice to the parties in interest and a showing of the facts. In cases of confession of judgment the court liasequitable powers. Watson v. Reissig, 24 Ill. 281; Chittenden v. Rogers, 42 Ill. 95; Reedy v. Millizen, 155 Ill. 636-46, and cases cited; Blake v. State Bank, 178 Ill. 182.

Even if it be conceded that the return of the sheriff upon the execution issued on the brewing company’s judgment was sufficient prima facie to give jurisdiction in chancery on a creditor’s bill, which we consider very doubtful, the allegations of the bill and the proof overcome it and show that the complainant’s remedy at law had not been exhausted. The return is:

“ The within named defendants and no property of the within named defendants found in my county upon which to levy this writ.”

Does it mean that the defendants were found by the sheriff, or that they were not found? To say the least, we think the meaning of this language is very doubtful. In any event, it fails to show that a demand was made on the defendants, or either of them. It is a grave question whether the remedy at law is exhausted without a demand having been made of a defendant who is shown, as is Metz, to be a resident of the county where the execution issues. A defendant has the right, under the statute, to turn out real estate before his personalty shall be taken. But this is not controlling. Equity will not enforce a legal demand until the creditor shall have first exhausted his remedy at law. That fact, as a general rule, is essential to chancery jurisdiction. Detroit, etc., Mills v. Ledwidge, 162 Ill. 305, and cases cited; Durand v. Gray, 129 Ill. 9-17, and cases cited.

The bill alleges, in substance, that when the judgment was recovered Lorenz Metz was seized of real estate in Chicago, describing it specifically, and that subsequent to the rendition of the judgment he conveyed it to Rayner, the latter conveyed it to appellant, and that she, her husband joining, conveyed to Newberry. The latter held the title at the time the bill was filed, appellees claim, and it was a fact that the judgment was then a lien on this realty and no reason is shown why the brewing company could not have obtained an alias execution, levied it upon the real estate and sold the same to satisfy the judgment. These facts overcome the return of the sheriff, even though it was prima faoie sufficient to give equity jurisdiction.

The brewing company, therefore, having at the time the bill was filed a complete and adequate remedy at' law, a court of chancery had no jurisdiction to entertain the bill, and it should have been dismissed.

There being no jurisdiction in chancery on the original bill it follows that the cross-bill should also have been dismissed unless it contains matters of equitable cognizance. Houston v. Maddux, 179 Ill. 377-91, and cases cited.

The evidence shows that the same attorneys who represented the brewing company in the confession of judgment, acted for Newberry and examined the abstract of title when he purchased from appellant. These, attorneys, knowing of the judgment, Newberry, for whom they were acting, is chargeable with their knowledge and must be held to have taken the title knowing it was subject to the lien of the judgment.

Moreover, Mr. Newberry has no such standing in equity as would enable him to maintain his cross-bill. He has no right of action against appellant on his covenant of warranty until he has suffered a loss, except for nominal damages. Richard v. Bent, 59 Ill. 38-43; Brand v. Henderson, 107 Ill. 146.

The case of Coffman v. Scoville, 86 Ill. 300-6, relied on by appellees’ counsel, is not, in our opinion, applicable to the facts here. If appellant sought to enforce payment by foreclosure, a different question would be presented. She is asking no relief, and we therefore think the cross-bill must fall with the original bill.

It is contended by appellant that the sale under the chattel mortgage mentioned in the statement did not have the effect of passing title in the mortgaged property to the brewing company, and that it should be charged with the full value thereof, which, the evidence tends to show, although it is not found by the decree except by the general affirmance of the master’s report, was worth at least $500-, if not as high as $3,000. We think this contention is untenable. A provision in the mortgage is to the effect that the mortgagee may become the purchaser of the mortgaged property at its own sale. The evidence shows that the sale was conducted according to the provisions of the mortgage, and was in all respects regular, the mortgagor and said Lorenz Metz having been notified of the time and place of sale. This had the effect of vesting the title in the mortgagee. Jones on Chat. Mort., Sec. 791, and cases cited; Griffin v. Marine Co., 52 Ill. 130-8; McConnell v. People, 84 Ill. 584; Goodell v. Dewey, 100 Ill. 308.

The cases cited by appellant are not in point. The mortgagor in this case, by the express terms of that instrument, gave to the mortgagee the right to become the purchaser, and neither he nor appellant can now question that right. Her position is no better than that of the mortgagor.

The decree is reversed, and the Circuit Court is directed to dismiss the bill and cross-bill for want of equity. Reversed with directions.